Telehealth has become an integral feature for the delivery of behavioral health services in a post-pandemic world. While telehealth utilization rates are down across all specialties compared to COVID-level highs, behavioral health services continue to lead all specialties with the highest rate of utilization (37%) through Q3 2023.1

Despite the sustained need for behavioral health services, we are continuing to experience a shortage of professionals. Approximately 47 percent of the U.S. population live in a behavioral health workforce shortage area.2 Rural communities and economically distressed communities experience higher instances of such shortages, positioning telehealth as a necessary tool to address these disparities in access to care.3

To address both the ongoing need for behavioral health services and the workforce shortage, there has been a push towards implementing payment parity for telehealth services across the country. Payment parity requires that providers are reimbursed the same amount for telehealth visits as in-person visits. During the COVID-19 pandemic, several states passed temporary payment parity legislation; now, many states are implementing payment parity permanently. As of October 2023, 21 states have implemented policies requiring payment parity, eight states have partial parity and 21 states have no payment parity.4

Regulatory Update

The Center for Medicare and Medicaid Services (CMS) recently issued a final rule for calendar year 2024 under the Medicare Physician Fee Schedule (the “Final Rule”) that updates key payment policies and Medicare payment rates for services furnished by physicians and non-physician practitioners to Medicare beneficiaries.

The Final Rule implements the telehealth flexibilities passed by the Consolidated Appropriations Act, 2023, which extends through December 31, 2024, many of the telehealth waivers and flexibilities that were put in place because the COVID-19 public health emergency (PHE). Namely, the current flexibilities include among others:

• Waiving geographic limitations and originating site requirements, which allows beneficiaries to receive telehealth services from their home;
• Expanding the types of providers that may furnish telehealth services to include mental health counselors and marriage and family therapists;
• Delaying the requirement for an in-person visit with the physician or practitioner within 6 months prior to initiating mental health telehealth services, and, again, at subsequent intervals as the Secretary determines appropriate;
• Allowing practitioners to render telehealth services from their homes without reporting their home address on their Medicare enrollment while continuing to bill from their currently enrolled location. (This waiver will continue through December 31, 2024.); and
• Extending coverage for audio-only telehealth services in certain limited circumstances. (However, CMS notes in the Final Rule that most telehealth visits require the use of audio and video technology.)5

Tele-Prescribing

In late 2023, the Drug Enforcement Agency (DEA) announced that it will allow practitioners to prescribe controlled substances via telemedicine through December 31, 2024, because an extension of pandemic-era telemedicine prescribing flexibilities. As we move through 2024, many question remain. Will DEA flexibilities become permanent? Will DEA implement a special registration process for telemedicine prescribers? What impacts will forthcoming regulations have on behavioral health providers, including addiction treatment and psychiatric care access?

The DEA’s initial proposed rules, issued in February 2023, reinstated strict limitations on virtual prescribing of controlled substances and signaled a significant roll back of the in-person medical evaluation flexibilities extended during the PHE. In response to the proposed rules, the DEA received widespread criticism from industry stakeholders, receiving over 38,000 comments, the most the agency has received in response to any proposed rule.

In recent years DEA has also been under congressional pressure to implement a special registration process for teleprescribing. In a bipartisan letter sent to the DEA in September 2023, several senators expressed concerns over both the potential impact of the DEA’s proposed rules and the fact that the DEA has yet to develop a special registration process for tele-prescribing despite multiple legislative actions permitting, and in fact requiring, it to do so. The letter emphasized the potential for a special registration process to balance the need for provider clinical judgement and flexibility in prescribing appropriateness via telemedicine encounters.

Without a permanent policy change, telehealth providers, especially mental health providers, will likely have to re-examine their current models to meet patient need and access to care issues stemming from the inability to prescribe controlled substances virtually. Companies that rely on telehealth to increase access to buprenorphine for OUD treatment and MAT are likely to face particular impact without permanent legislative change.

Conclusion

The future of telehealth promises significant advancements in the delivery of behavioral health services, with legislative trends reflecting a growing recognition of its importance. However, behavioral health providers and investment in behavioral health would be fortified by making certain telehealth flexibilities and related payment issues more permanent and reliable. Some key trends that we will be tracking in 2024 include -

• Payment Parity: Legislative efforts aimed at achieving payment parity between telehealth and in-person visits are gaining traction. These initiatives seek to ensure that providers are reimbursed fairly for telehealth services, incentivizing the adoption of virtual care options for behavioral health treatment.
• Cross State Licensure: As telehealth transcends geographical barriers, there is a push for legislative changes to facilitate cross-state licensure for all providers, including behavioral health providers. This would enable practitioners to deliver care to patients across state lines, increasing access to services and addressing provider shortages in underserved areas, without having to navigate the administrative burden and expense associated with independent state medical board licensure requirements and processes.
• Regulatory Support for Digital Therapeutics: The rise of digital therapeutics, including mobile apps and online platforms, is reshaping the landscape of behavioral health care. These innovative solutions offer evidence-based interventions for various mental health conditions, complementing traditional therapy and expanding treatment options for patients. Regulatory bodies are increasingly recognizing the value of digital therapeutics and telehealth in improving access to behavioral health care. Efforts to streamline regulatory processes and ensure quality standards for these technologies are underway, fostering innovation while safeguarding patient safety.
• Integration with Traditional Care: Telehealth is becoming increasingly integrated into traditional behavioral health care delivery models. Providers are leveraging technology to offer hybrid models of care, combining virtual visits with in-person appointments to meet the diverse needs of patients and enhance care coordination. Telehealth empowers patients to take a more active role in managing their behavioral health, offering greater convenience and flexibility in accessing care. Legislative initiatives focus on promoting patient-centered approaches, including policies that support patient choice and autonomy in selecting telehealth services.

Continued advancements on the fronts noted immediately above have the potential to revolutionize the delivery of mental health care, making it more accessible, affordable, and personalized for individuals across diverse populations.

1 Telehealth Utilization Higher Than Pre-Pandemic Levels, but Down from Pandemic Highs (November 21, 2023) available at https://epicresearch.org/ articles/telehealth-utilization-higher-than-pre-pandemic-levels-but-down-from-pandemic-highs

2 William A. Haseltine, PhD., Solving the Mental Health Provider Shortage (September 22, 2023) available at https://www.psychologytoday.com/us/ blog/best-practices-in-health/202309/solving-the-mental-health-provider-shortage

3 Id. For additional detail, please also refer to Polsinelli’s Top Issues in Behavioral Health 2023 Newsletter, “Despite Additional Funding, Staffing Shortages Will Continue to Reduce Access to Behavioral Health, available at https://polsinelli.gjassets.com/content/uploads/2023/02/March_23_ Behavioral_Health_Newsletter.pdf.

4 American Medical Association, State Telehealth Policy Trends 2023 Year in Review, available at https://www.ama-assn.org/system/files/ama-statetelehealth-policy-trends-2023.pdf.

5 88 Fed. Reg. 78818, et seq.